OUT LOUD: Yo-Ho, You Look Alike!
Copyright claims seem to happen often in the 'creative' industry. I found one and asked myself: Can it give me some insight into art beyond the law?
Last Wednesday, The Hollywood Reporter published an article about a copyright legal case involving Disney and the Pirates of the Caribbean franchise.1 As I was reading it, it made me wonder something about subjectivity and art.
What is the case about?
It’s about a copyright infringement action brought by Arthur Lee Alfred II and Ezequiel Martínez (Plaintiffs) against The Walt Disney Pictures (Defendant). The Plaintiffs (people who make an accusation and bring it to court) claim that all movies released to date in the Pirates of the Caribbean franchise infringe their homonymous screenplay from the year 2000 (three years before the release of Pirates of the Caribbean: The Curse of the Black Pearl).
The legal document uploaded by The Hollywood Reporter is not the full case. It represents just the "Defendant’s Motion for Summary Judgement RE Substantial Similarity". It’s basically Walt Disney asking the judge to do a summary judgement of the case, which is, according to the Cambridge dictionary:
The key in this definition seems to be that there should not be any "genuine" issues of "material" facts in dispute (any fact that could affect the outcome of the suit under governing law). To me, Walt Disney is saying to the judge: "Look, all of us are more or less in agreement about the material facts of the case, so go ahead and make a decision". But the judge denied Disney’s motion, which means that there must be at least one material fact in dispute.
The reason I’m interested is because in cinema there is this pervasive argument that "art is subjective" so "anything that I interpret is valid". One of my core principles is that not everything in art is subjective. Few people dare to consider that view, let alone holding it and exploring it. For those who do, or are willing to consider it, perhaps a quick glance at a legal case about a presumed copyright infringement can shed some light in that direction. After all, courts don’t (or should not) make judgements based entirely on subjectivity. Facts, evidence, reason, due process and objectivity are substantially important.
One key issue in the case seems to be: Are the Plaintiff’s screenplay and Disney’s movies substantially similar? I would ask: Similar in what way? One character, two characters, a group of characters, narrative storylines, etc.? Since I’m not familiar with the full case, I will just discuss the document uploaded by The Hollywood Reporter.
It’s not my intention to do a full analysis, just to read an eleven-page document and see if I can find something worth pondering about regarding one of my core principles (see above). It’s more of a thought-process walkthrough as I read it rather than a dissertation about Law or Art.
First, I jump straight to section three of the document titled "DISCUSSION". Remember, this was a motion filed by Disney, so it presents their argument about why the judge should do a summary judgment. If what I highlight in Screenshot 1 (yellow) is true, then it’s alarming what someone can consider "expert testimony". But then again, I must ask myself: What kind of expert opinion was that person asked to give? If it was about pirate movies and pirate-movie tropes, then it certainly doesn’t give that person any credibility. However, footnote 3 (not visible) states that the Plaintiff’s expert testified at his deposition: "I consider myself having familiarity with pirate literature".
In the past, a district court had dismissed the action, but the Ninth Circuit (Court of Appeals) doesn’t think that’s the case (see yellow highlights in Screenshot 2). I notice that "pirate-movie tropes" are mentioned twice in this statement. It gives me the impression that tropes are not protected for copyright purposes. The interesting part comes with the orange highlight, which seems to imply that, in order to be fair, it might be advisable to consider pirate-movie tropes before the first Disney film, to remove the possible influence that the film franchise might have exerted over similar works.
This changes my view about the Plaintiff’s expert. My problem is that the document doesn’t say what is the person’s expertise, so judging him/her based solely on his/her pirate-movie expertise doesn’t seem prudent, especially after the above statement (Screenshot 3, yellow).
Anyway, Screenshot 4 orange highlight touches reasonably well on my reference to "art is subjective". Why? Well, the case is about a presumed copyright infringement and one of the main goals is to find out if the works in question are "substantially similar". At first glance, it seems like a subjectivist’s paradise ("anything that I interpret is valid"), but a judge cannot leave this matter to plain subjectivity. This paragraph gives us two avenues of inquiry: It mentions a test and it mentions (legal) standards.
The Ninth Circuit divides substantial similarity analysis into separate "extrinsic" and "intrinsic" tests. The extrinsic test assesses the similarities of the two works, focusing only on the protectible elements of the plaintiff’s expression. The extrinsic test also requires filtration of the unprotectible aspects of the plaintiff’s works. What remains after filtering out is compared to the corresponding elements of the defendant’s work to assess similarities in the objective details of the works.
The intrinsic test is viewed by the Ninth Circuit as "subjective" and "holistic." It involves comparing the protectible aspects of the plaintiff’s work to the defendant’s work, and determining whether both are substantially similar in "total concept and feel." It looks to the "ordinary person’s subjective impressions of the similarities between the works." To succeed, the plaintiff must prove that there is substantial similarity under both extrinsic and intrinsic tests.2
The rest of the document (six additional pages) deal with legalities. I have no idea (but would be interested to know) about the legal standards referenced in Screenshot 4 (orange), but the "extrinsic" and "intrinsic" tests do make me wonder if something similar could be applied to film analysis (i.e. compare the similarity of two movies by using analytical tools). Remember, I didn’t claim "art is (or should be) objective". I claimed "not everything in art is subjective". Very different claims. It implies that, yes, some subjectivity will remain, but it’s not my goal to make it my paradise.
If you’re are a lawyer or are knowledgeable about the subject, leave a comment below and let me know if there’s a methodology to perform these tests. At least they have sparked some curiosity in me. You can read the full document here.